Chapter 6 - 6.5 Exhibits

• Jurisdiction: Virginia

6.5 EXHIBITS

6.501 In General. Because exhibits can make a strong impression on the jury, counsel should not miss a legitimate opportunity to object to their admission. Many of the objections to testimony stated previously would apply equally to exhibits. If proffered exhibits are not admitted, counsel should request that they be marked refused so that they become part of the record on appeal.

6.502 Objections Specific to Exhibits. There are also objections that apply specifically to exhibit evidence. These include the following:

A. Authenticity.¹⁹² An exhibit must be authenticated or identified before it can be admissible.

Objection: Exhibit not properly authenticated.

Reply: Permit me to show that the exhibit is what it is purported to be.

Discussion: A proper foundation must be laid for the exhibit to be admitted. The testimony of a witness with knowledge is acceptable in many cases.¹⁹³ A witness or, in some cases, a series of witnesses, who can testify concerning the circumstances existing when the exhibit was created, and that the exhibit is what it claims to be, can provide this foundation.¹⁹⁴

Virginia recognizes an exception for public records, but the document must relate to facts or events about which the recording official has personal knowledge.¹⁹⁵

A reasonable way to proceed is to attempt to stipulate to the fact that there is no need to bring the custodian into court to testify as to authenticity or the business records exception. If the documents in question, however, are not business records as that term is defined but rather are simply plain hearsay, then that objection should be preserved.

To prove the authenticity of existing or old websites, consider section 8.01-390.3 of the Virginia Code, which deals with business records as evidence.

B. Best Evidence Rule. As discussed in paragraph 6.414 of this chapter, the best evidence rule requires that the original document be produced if the content of a writing is to be proved and if it is a contested matter in the case. The mere existence of a writing does not, however, preclude proof of content by means of testimony. The best evidence rule generally applies to such documents as wills, deeds, judgments, or contracts.¹⁹⁶ it does not apply to video or other recordings which, regardless of the medium, are not "writings" as understood at common law.¹⁹⁷

Objection: The document is not the original.

Reply: The terms of the writing are not in dispute.¹⁹⁸

The original is not available through no fault of the party offering the document.¹⁹⁹

Other evidence of the document's contents is acceptable if the original is:

• Lost or destroyed.

• Not available, even through judicial process.

• Only relevant to collateral matters.

C. Cumulative of Oral Testimony.²⁰⁰ A summary of an expert's oral evidence cannot go to the jury because it improperly bolsters oral testimony.²⁰¹ A transcript of a tape recording is not admissible as an exhibit, but it may be given to the jury while the tape is played to assist their understanding.²⁰²

D. Captions Are Prejudicial.

E. Demonstrative Exhibits. Demonstrative exhibits, such as medical drawings, should come from established texts such as Netters.²⁰³

F. Not Explanatory of Any Verbal Testimony.

G. Hearsay. Written documents are also subject to a hearsay objection if they are offered for the truth of their contents.

Objection: The document is hearsay.

Reply: The document is:

• A public record. For instance, to get weather records into evidence, obtain a certified copy of the NOAA Weather Station data.

• A statement of fact or admission made by opposing party.

• A business record.

• A declaration against interest.

Objection: Expert report is hearsay.

H. Inaccurate Representation. A picture that has been modified in any of the three dimensions may be objectionable.

I. Lack of Foundation. With reference to an exhibit, failure to lay a proper foundation is essentially a relevance or authenticity objection. This objection is discussed in relation to witness testimony in paragraph 6.413 of this chapter.

Objection: The exhibit lacks a proper foundation.

Reply: The witness is familiar with the subject portrayed, is testifying as to the basis for that familiarity, recognizes what is portrayed, and is prepared to testify as to the substantial similarity between what is portrayed and the condition as it existed at the time of the incident, and that the means used to reproduce it do so accurately and without distortion.

J. Not Drawn to Scale.²⁰⁴

K. Events Portrayed Not Substantially Similar to Event at Issue.

L. Objections to Photographs. Although photographs also cannot be characterized as hearsay because they are technological...